Analysis: An elusive constitutional issue

Posted Wed, December 2nd, 2009 1:45 pm by Lyle Denniston

Analysis

The last time the Supreme Court went out of its way to correct the errant ways of the Florida Supreme Court was nine years ago — in Bush v. Gore. That still-controversial precedent did not get mentioned during oral argument on Wednesday, but it may well have been in the background as the Justices again closely parsed the work of that state’s highest tribunal. This time, though, most of them came away seemingly reluctant to conclude that the Florida court does not know what it is doing. And, though some were tempted to do just that, it did not appear that five were, as the Court heard Stop the Beach Renourishment v. Florida.

The constitutional issue that looms in this case is one the Court has often heard about but never before agreed to consider: is there such a thing as a “judicial taking” — a court decision that, in fact, seizes property for public use without paying for it? Justice Antonin Scalia, whom some property law experts see as eager to find such a “taking,” emerged Wednesday as sympathetic to that idea, but still a bit skeptical. Sharing some of his sentiments, in varying degrees of intensity, were Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr.

Even assuming they feel that way, though, could that perception draw five votes? (Even though only an eight-Justice Court will be deciding this case, because Justice John Paul Stevens — a Florida property owner — took himself out of the case, it still would take five votes to overturn the state Supreme Court ruling at issue.)

To reach that result, the Justices seemed to understand, they would have to look closely into the history of property rights under Florida state law, and then conclude that the state Supreme Court seriously misinterpreted those rights in ruling against beachfront property owners in Walton County who claim that some of their rights have been taken away without compensation. As Justice Anthony M. Kennedy (sure to hold a crucial vote) put it, “we have to become real experts in Florida law” before they could conclude that the state court lacked any fair basis in state law for its ruling.

And, in another revealing comment, Kennedy seemed to be saying that, after reading the state court’s opinion, he could find in it a sufficient grounding in state law principles. If Kennedy is actually persuaded of that, it would seem, he would never get to the issue of whether a court ruling can constitute an unconstitutional “taking.” He also appeared uncertain over how to craft a meaningful constitutional standard for finding a “judicial taking.” He asked, rhetorically, “would we just find all sorts of adjectives” to characterize a state court’s reading of its own law before the Justices would allow a federal court to second-guess it?

At the same time, Kennedy did display some concern (prompted by some slippery-slope questioning by Justice Alito) that if state governments were left largely free to re-arrange how beachfront property could be used or developed, existing owners’ rights would be seriously impaired. But that appeared to be mainly a worry over what state agencies, not state courts, would do with a state’s beaches.

For all the sympathy that the Walton County beachfront owners drew from some members of the Court, they got none to speak of from Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor. Bluntly, both Breyer and Sotomayor told the owners’ lawyer that his clients had actually lost nothing at all when the state filled in beach that had been eroded by hurricanes. Ginsburg appeared to be deeply skeptical of even the suggestion that the state court had taken the owners’ rights, implying that they were on the right track when they challenged actions of the state legislature, before switching targets to challenge the state court.

Even Justice Scalia, whose initial comments early in the argument seemed to place him definitely on the property owners’ side, developed a bit of his own skepticism as the argument moved along. He suggested that those owners might well have benefitted significantly from beach-restoration projects, so perhaps those were not such a “bad idea” after all.

There was one indication that, for all of the difficulty the Court might see in wrestling with the “judicial taking” concept, the Justices were serious about considering that question this time. That indication came in the aggressive questioning from the bench of the federal government’s lawyer, Deputy Solicitor General Edwin S. Kneedler. In the case to represent the government as amicus supporting the state of Florida’s “sovereign interests” in protecting its own beaches, Kneedler’s entire argument was that the Court simply need not even consider the “taking” question and, if it did, to find absolutely no basis for it in this particular dispute.

The sharpest retort came from the Chief Justice: “Mr. Kneedler, that’s a clever ploy. We’re talking about judicial takings and you say, don’t look at what the court did, look at what the legislature did. That changes the whole ball game.”

Moreover, Kneedler had no real answer when pressed to suggest why the state Supreme Court had failed to cite the one precedent in state property law that would most support the conclusion it drew. That, said the government lawyer, was indeed surprising.

If it should turn out that the Court casts a 4-4 tie vote when it casts its first tally on the case, that result could be announced quickly — perhaps as early as next week. That would uphold the state court ruling, without an opinion and without setting a precedent. The notion of “judicial taking” would then have to await another day and a different case.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

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Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.